Saturday, October 10, 2009

On Thursday, the Supreme Court of Florida released its decision in G.M., etc. v. Florida (SC08-1102) and concluded "that flashing lights are an important factor but not the only one judges must consider when deciding if police made a show of force before they suspected a crime." [See Miami Herald here]. You can also read a story in the Herald Tribune here.

It strains the bounds of reason to conclude that under these circumstances, a reasonable person would believe that he or she was free to end the encounter with police and simply leave. See Mendenhall, 446 U.S. at 554. Moreover, it would be both dangerous and irresponsible for this Court to advise Florida citizens that they should feel free to simply ignore the officers, walk away, and refuse to interact with these officers under such circumstances. Instead, as a matter of safety to both the public and law enforcement officers, we conclude that a citizen who is aware of the police presence under the specific facts presented by this case is seized for Fourth Amendment purposes and should not attempt to walk away from the police or refuse to comply with lawful instructions.

However, that did not end the discussion. The trial court's must determine when the suspect actually became aware of the police lights. In this case, the court noted:

When asked about his conduct when he first observed Officer Smith at the window, G.M. replied, “I had marijuana in my lap and I was rolling.” The police vehicle was positioned behind the parked vehicles, and G.M. was seated with his back toward the unmarked vehicle and his head lowered. It is logical to conclude from this evidence that G.M. did not see the emergency lights at that time, nor was he aware of the police presence until Officer Smith actually appeared at the window beside him. G.M.‟s conduct is inconsistent with a person who has observed police lights and the presence of law enforcement. G.M. did not place the marijuana in his mouth until after Officer Smith appeared at the window and identified himself. If G.M. had been aware of the lights or the police presence, logic dictates that he would have attempted some furtive action before Officer Smith appeared at the car window, and the officer would not have seen and smelled the smoke or found G.M. with the marijuana in plain view. Therefore, our Fourth Amendment analysis of when G.M. was seized is based upon a conclusion that G.M. was not aware of the activated police lights and did not become aware of the police presence until Officer Smith actually appeared at the window of the vehicle in which he was seated.

Jury Instructions

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